9.6 Alien—Deported Alien Reentering United States Without Consent

The defendant is charged in [Count _______ of] the indictment with being an alien who, after [removal] [deportation], reentered the United States in violation of Section 1326(a) of Title 8 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, [[the defendant was [removed] [deported] from the United States]] [[the defendant departed the United States while an order of [removal] [deportation] was outstanding]];

Second, thereafter the defendant knowingly and voluntarily reentered the United States without having obtained the consent of the Attorney General or the Secretary of the Department of Homeland Security, to reapply for admission into the United States; and

Third, the defendant was an alien at the time of reentry.

An alien is a person who is not a natural-born or naturalized citizen of the United States.

Comment

Section 1326 provides three separate offenses for a deported alien: to enter; to attempt to enter, and to be found in the United States without permission. United States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir.2001). Use this instruction for "entered," Instruction 9.7 for "attempted reentry," and Instruction 9.8 for "found in."

As to the second element of this instruction, it should be noted that although 8 U.S.C. § 1326(a) provides that the statute is violated by an alien who "enters, attempts to enter, or is at any time found in, the United States, unless . . . prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented" to the alien’s reapplying for admission, it is common for the charging indictment in such prosecutions to refer to the lack of consent by the Secretary of the Department of Homeland Security.

An alien has not reentered the United States for purposes of the crime of reentry of deported alien "until he or she is physically present in the country and free from official restraint." United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1191 n.3 (9th Cir.2000) (citing United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir.2000)). An alien is under official restraint if, after crossing the border, he is "‘deprived of his liberty and prevented from going at large within the United States.’" United States v. Cruz-Escoto, 476 F.3d 1081, 1185 (9th Cir.2007) (citations omitted). An alien need not be in physical custody to be officially restrained. Id. (citing United States v. Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir.2000)). "‘[R]estraint may take the form of surveillance, unbeknownst to the alien.’" Id. (quoting Pacheco-Medina, 212 F.3d at 1164). The government has the burden of proving the defendant was free from official restraint, but need not respond to a defendant’s free floating speculation that he might have been observed the whole time. United States v. Castellanos-Garcia, 270 F.3d 773, 777 (9th Cir.2001). When there is some evidentiary support for it, the court might consider instructing the jury on the defense of constant official restraint as follows:

THEORY OF DEFENSE

In this case when deciding whether the defendant is guilty or not guilty of the crime of being a deported alien found in the United States, the government must prove beyond a reasonable doubt that the defendant was not under constant official restraint when [he] [she] entered the United States. If the defendant was under constant official restraint, [he] [she] cannot be found guilty of being found in the United States.

"Under constant official restraint" means the defendant was under constant, continuous observation by a United States officer, either directly or by camera surveillance, from the moment [he] [she] first crossed the border and entered the territory of the United States up until the time of [his] [her] apprehension. If the individual was first observed after [he] [she] had physically crossed the border of the United States, then [he] [she] is not under constant official restraint.

In Almendarez-Torres, 523 U.S. 224, 244 (1998), the Supreme Court held that in a prosecution for illegal re-entry after deportation in violation of 8 U.S.C. § 1326(a), the existence of a prior aggravated felony conviction need not be alleged in the indictment and presented to the jury because the conviction constitutes a sentencing enhancement pursuant to 8 U.S.C. § 1326(b)(2) and "[a] prior felony conviction is not an element of the offense described in 8 U.S.C. § 1326(a)." United States v. Alviso, 152 F.3d 1195, 1199 (9th Cir.1998). The [Supreme] Court’s opinion in Apprendi v. New Jersey, 530 U.S. 446 (2002) expressed doubt concerning the correctness of Almendarez-Torres; however, the Ninth Circuit has stated that "until the Supreme Court expressly overrules it, Almendarez-Torres controls." United States v. Pacheco-Zepeda, 234 F.3d 411, 414-415 (9th Cir.2000).

Under § 1326(b)(1), a sentence based on a removal that was subsequent to a conviction for a felony or aggravated felony, the aggravating fact of the removal being subsequent to the conviction must be submitted to the jury. United States v. Salazar-Lopez, 506 F.3d 748, 751-52 (9th Cir.2007); see alsoUnited States v. Covian-Sandoval, 462 F.3d 1090, 1097-98 (9th Cir.2006) (explaining it was error for a court to find the existence of a subsequent removal that was neither proven beyond a reasonable doubt at trial nor admitted by defendant).

The instruction directs the jury that it must find the alien re-entered after having been removed from the United States. A special jury finding is required as to the date the defendant was removed from the country or that removal was subsequent to a prior conviction, unless the temporal sequence of events is necessarily established by the evidence and jury verdict. See United States v. Calderon-Segura, 512 F.3d 1104, 1110-11 (9th Cir.) (evidence presented of removal in 1999 and jury found defendant guilty of being deported, thereby establishing the date of removal was subsequent to a prior conviction in 1997), cert. denied, 129 S. Ct. 119 (2008); see also Butler v. Curry, 528 F.3d 624, 645 (9th Cir.2008).

The third element, alienage, is an element of the offense that the government must prove. A defendant who contends that his or her citizenship derives from the citizenship of a parent is not raising an affirmative defense. The burden remains on the government to prove the defendant is an alien. SeeUnited States v. Sandoval-Gonzalez, 642 F.3d 717 (9th Cir.2011).

A person who meets any of the qualifications set out in 8 U.S.C § 1401 is a national or a citizen at birth.

In the typical case the third element will turn on whether the defendant is a citizen, but in rare cases the issue could be whether the defendant is a national of the United States. See 8 U.S.C. §1101(a)(22) for a definition of national of the United States. Seealso Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 967-68 (9th Cir.2003).